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Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 21 of 27 <br /> designating this point as when the defendant is "put to trial") (internal quotation <br /> marks and citations omitted). "In the case of a jury trial,jeopardy attaches when a <br /> jury is empaneled and sworn. In a nonjury trial,jeopardy attaches when the court <br /> begins to hear evidence."Id. (internal citations omitted). The clause's protections, <br /> then, "kick in ... only after the defendant has been placed in jeopardy-[i.e.] when <br /> jeopardy has attached." United States v. Patterson, 406 F.3d 1095, 1096 (9th <br /> Cir.2005). Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, <br /> 43 L.Ed.2d 265 (1975). <br /> The protection of the Double Jeopardy Clause does not apply until a <br /> defendant is put to trial before the trier of fact. Serfass v. United States, <br /> 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Gamble, <br /> 141 F.3d 621, 623 (6th Cir.1998). In jury trials, it attaches when a jury is <br /> empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, <br /> 57 L.Ed.2d 24 (1978); Serfass, 420 U.S. at 388, 95 S.Ct. 1055; Terry v. Potter, <br /> 111 F.3d 454, 456 (6th Cir.1997). In non-jury trial trials, it attaches when the first <br /> witness is sworn and the court begins to hear evidence. Crist, 437 U.S. at 37 n. 15, <br /> 98 S.Ct. 2156; Serfass, 420 U.S. at 388, 95 S.Ct. 1055. If a case is dismissed prior <br /> to the defendant being put to trial before the trier of fact (e.g., by a motion to <br /> dismiss under Fed.R.Civ.P. 12(b)), then double jeopardy protections will not <br /> 14 <br />